Monday, March 26, 2007

Every moral tradition has a test for virtue that asks the agent to measure the rightness or wrongness of an option by asking, “What would you have others do unto you?”

Now that Iran has 15 British soldiers who have apparently “confessed” to an incursion into Iranian waters, we have an opportunity to ask what we would have Iran do unto those soldiers, and ask if the Bush Administration – the administration that sought office substantially on the basis of the great moral virtue of its leaders – has followed this principle.

So, our 15 soldiers are marched off to a Guantanamo Bay style prison.

What are our moral standards here? Has Iran proved by this that they are a morally upright nation? Have they shown that they are acting as people of good moral character? I would like any who think so to call or write the families of those 15 British soldiers and say to them, “You have no reason to complain. Iran is proving that its national moral character is as good as that of the United States. They are doing exactly what the United States leadership has claimed a nation of morally upright leaders should do, which is to haul such people off into Guantanamo Bay style prisons.”

We must imagine that nobody is allowed to have contact with these prisoners. They get no visits from the United Nations, the Red Cross, or any other organization to determine how they are being treated. They are kept in complete isolation. Friends and family do not hear from them and have no idea what has happened to them.

In imagining your letter to these families, do not forget to write that this, too, is what any nation of good moral leaders would do. “You have no right to complain, because your family members are being treated morally and justly. The government of Iran is living up to all of its moral obligations regarding the treatment of foreign prisoners.”

The years go by. The Iranian government continues to insist that the British soldiers are guilty. There has been no trial. There have not even been any formal charges. Whenever the Iranian government speaks about these people, they say how foolish it would be to let these invaders go free, where they will once again be able to plot and scheme with others who hate Iran to attack the country again, or to harm Iranian interests elsewhere in the world. They speak as if the 15 prisoners are all, in fact, members of a plot to attack Iran and bring down its government.

Oh, does somebody in one of these families want to complain that these British soldiers were not actually in Iranian waters? Well, according to President Bush and the New Moral Order, that is not really a problem. A country is perfectly within its rights to send agents into another country to capture ‘enemy combatants’. All of the niceties of extradition and due process are of no concern to the model of post 9-11 morality.

Then, we get news out of China. Remember, we do not have any contact with these soldiers in Guantanamo-Iran. Officials in China now tell us that they have monitored airplane flights from Iran to North Korea. Evidence suggests that Iran is now operating black-site prisons in Korea for prisoners who, they think, need some special treatment. They have turned three of these 15 soldiers over to the North Koreans, and kept two others in their own prison that they were secretly operating in Korea.

So, in your next letter, make sure to tell these soldiers’ families that Iran is behaving no different than any morally concerned, justice-loving, model nation should behave. It has not crossed any moral line. Its leaders still exhibit the most spotless of moral character. Because, as the model of moral virtue himself, the leader of the United States, now tells us, this is the new morality. This is what the 21st century elite now knows as virtue. Whatever is happening to those soldiers, remember that they are being treated exactly how the American government says they should be treated.

Then, finally, the Iranian government starts talking about a trial. The year is 2012. In conducting this trial, the Iranian government is going to use military tribunals. There will be no open court – no system whereby the Iranian government needs to prove to the world that it has just cause to punish these soldiers. Instead, there will be a secret trial, where the Iranian government will be permitted to present secret evidence as well as information gained through five years of ‘interrogation’. The accused will not even be present at the discussion where the Iranian judge, Iranian prosecutor, and appointed Iranian defender decide his fate.

He will have no opportunity to tell them that they are jumping to conclusions, that they have their facts mixed up, or that he can prove that so-and-so was lying. This is because he will never know about these conclusions, facts, or so-and-so’s testimony.

Now, write your letter to the soldier’s family saying that they got a fair and just trial, were properly convicted in a court of law, properly sentenced, and that the punishment was properly executed. Tell the family that they still have nothing to complain about because, at no time, did the Iranian government treat these soldiers inhumanely, immorally, or unjustly. In fact, they showed perfect virtue. They proved themselves to be the moral equal of the United States under the leadership of its most morally perfect President, George W. Bush.

I write these posts in the hopes that each one might make the world a slightly better place than it would have otherwise been. If anybody thinks that showing somebody something that I write would contribute to that end, then I am honored by the attempt.

Still, I think that it is more important for a person in a society such as this to talk to their friends, family, neighbors, co-workers, members of whatever clubs they belong to, and the like, rather than representatives.

Representatives will follow the polls. If the public is outraged, then the representatives will be outraged as well. If the public is passive, then representatives will do what they please.

This is why I write a blog. I do not think that 554 letters to my congressman in the last 1.5 years would have had the same effect.

Let us say for the sake of argument that a terrorist cell exists and that one of the members is about to commit an act that could take many lives.Let us also say that an informer is in the cell and provides information on which the terroist is arrested before the act is committed.Finally let's say that if the evidence is presented publicly or the terrorist is allowed to contact the outside world, the result will be that the informer will be revealed and killed and the cell will be free to conduct new terrorist acts.In the context of desire utilitarianism, what would be the best moral action to take under those circumstances?

Well since these sailors and marines were captured in uniform they should be given full protection under the Geneva convention. This is not true for those who are captured in Iraq or Afghanistan as insurgents, since they are not a uniformed group. As such the insurgents could be summarily executed as spies under the Geneva conventions. That is the difference.

If the 15 civillians were using munitions against Iran's holdings while not in uniform then yes. Since they were not in a standard uniform and could not be identified as part of a recognized military, they are nothing more than spies or saboteurs. This means that according to the Geneva conventions they have no rights other than those granted by the capturers.

Now if they were truly civillians sailing, then the act of Iran is an act of piracy. This is illegal due to the UN Convetion of the High Seas effective 1962, as well as the UN Law of the Sea convention 1982. Which according to Wikipedia (not the best source) Iran has signed but not ratified. So if Iran has engaged in piracy then it is possible for the piracy to be construed as an open act of agression against the flag country of the ship.

First, this is a blog about morality, not about the law. There was once a time when the Constitution itself protected slavery. It has nothing to do with the moral legitimacy of slavery. I am concerned with the moral legitimacy of actions, on their legality.

Second, you are presuming guilt on the part of the accused of "using munitions against [America's] holdings while not in uniform." Yet, this is much of what I am saying has yet to be determined. Some of these people are foreign citizens, picked up off the street, merely because somebody (who wanted them removed) said that they were guilty in order to get the Americans to do their dirty work, or because they had a name that closely matched the name of somebody the government was looking for.

Third, this principle would imply that the American military may enter any country in the world, and if anybody in that country decides to shoot back that it would be morally permissible to treat them as described above. Yet, I sincerely doubt that it would hold to the contrary principle that if a foreign army entered American soil, that only Americans in uniform may act to resist that occupation.

Fourth, the post concerned Bush's moral order, and that new moral order says that these actions are permissible even when taken against an American citizen, and requires only that the President name the individual an "enemy combatant". It declares the Geneva Convention inapplicable in these "special circumstances", so any defense of what the Geneva Convention says cannot be taken as a defense of Bush's new moral order.

One of the most blaring omissions in the statement coming from the US military in support of the UN Law of the Sea Convention is a thorough analysis of the treaty's more than 45 environmental articles, regulations and protocols, and numerous other standards that could be used to diminish the military's right to freedom of navigation/ innocent passage.

In addition, recent reports have been released that reflect that the US military will be increasing its reliance on private contractors more than 50% during the next 5-10 years. The myriad activities of private contractors designing, formulating, producing, testing, delivering and deploying technologies for military application are highly unlikely to qualify for exemption as 'military activities’ under the UNCLOS. The military brass is quite confident, at least publicly, about how they could unilaterally determine what is or is not a 'military activity' for purposes of qualifying for the treaty exemption. And, they believe that they could fit all such activities neatly under one ‘military activity’ tent. They are unlikely, however, to succeed in exempting their supply chains.

Furthermore, the environmentally-obsessed EU member states have 27 votes for every 1 vote cast by the US at the UNCLOS Secretariat meetings, which the administration has been less than forthcoming in explaining.

Lastly, there remains a quaint notion within US constitutional law which is commonly referred to as 'due process'. In the context of the Senate Foreign Relations Committee hearings that are now underway, this means transparency and a thorough publicly aired review. Unfortunately, this has not yet occurred considering that a number of house and senate committees possess oversight jurisdiction which they have yet to exercise to review the various dimensions of the UNCLOS that have not been considered in light of new international environmental law developments since the previous UNCLOS hearings. The American people are entitled to know from their elected representatives how this expansive treaty which will reach into US sovereign territory (land, internal waterways and air above) and into the US regulatory and free enterprise systems, will affect American pocketbooks, small businesses and daily lives.

The ‘LOST 45’ UN Environmental Restrictions on US Sovereignty

By J. William Middendorf II* and Lawrence A. Kogan**

During the past six months, a number of former and current administration officials have declared their support for the UN Law of the Sea Treaty (LOST), the largest environmental regulatory treaty in the history of the world. Based on their recommendations, President Bush, as did his predecessor, former President Clinton, agreed to resubmit the LOST to the US Senate once again for ratification.

These officials, many of whom are giants in the conservative movement, have argued that LOST ratification would ensure America’s national security, economic and technological vitality and positive standing within the international community. Regrettably, these claims are very much overstated.

Granted, US LOST ratification would signal our acceptance of long-established customary international freedom of navigation principles, as the US Navy and Coast Guard have asserted. However, the general rule of “freedom of navigation/innocent passage” which the administration relies upon as the chief justification for binding America to this treaty has, over time, been eroded and diminished in scope by the LOST’s more numerous environmental regulatory exceptions.

While the LOST contains only two articles (38 and 87) that refer expressly to the right of “freedom of navigation” and ten articles (17, 19, 21-25, 45, 52 and 211) that refer expressly to the related right of “innocent passage”, there are at least 45 environmental articles in LOST Part XII, plus countless others in Parts V, VII, IX, XI, XII, and XIII and Annexes I and VIII that effectively limit those rights. In addition to these ‘LOST 45 plus’, there are also two recent International Seabed Authority environmental regulations and at least one entire environmental protocol related to the LOST (the LOST UN Migratory Fish Stocks Agreement) which European nations have already employed to create ‘marine protected areas’ that even further burden such rights. Collectively, these overwhelming environmental restrictions on American sovereignty obligate the US government and private US citizens to preserve and protect the ‘marine environment’ and its ‘living resources’ against all kinds of possible human-induced ‘pollution’. This includes pollution generated from water, land and air-based sources (e.g., carbon dioxide), even those located within US sovereign territory, that could directly or indirectly impact the global marine environment. In other words, US courts would be compelled to interpret these LOST 45 plus over our own environmental laws should the US ratify the LOST. Tragically, very few US lawmakers are familiar with these LOST provisions or their relationship to numerous other UN environmental treaties.

Hence, following LOST ratification, US military and commercial shippers would no longer be able to rely on the right to freedom of navigation/innocent passage as an absolute right. Indeed, a growing number of foreign governments and commentators hostile to US interests have argued that, under LOST “the right of unlimited freedom of navigation” is subject to “the obligation to protect the [marine] environment”. This LOST reality was previously corroborated by the Clinton administration’s Oceans Report Task Force organized by former Vice President Al Gore. In light of the LOST’s failure to define exempt ‘military activities’, the 1999 report then warned that the domestic and international environmental obligations imposed by the LOST were being manipulated by foreign governments and environmental activists so as to “conflict [with] the US military’s ability to test, train, exercise, and operate in the marine environment”.

These findings should come as no surprise to this administration. Thirty years prior, the “father of the [first] Law of the Sea Conference”, Malta’s former UN Ambassador Arvid Pardo, declared that, “the new law of the sea must be based no longer on the notion of ‘freedom of the seas’ but on a new concept, the Common Heritage of Mankind (CHM).” Thereafter, Tommy Koh, Singapore’s former UN Ambassador and President of the third Law of the Sea Conference, described the LOST as “a global constitution for [the world’s] oceans” drafted in the image of the UN charter.

This administration, presumably, is also aware that CHM was originally a central planning (socialism)-based wealth redistribution mechanism rooted in the Cold War era. And, with a little homework, it should have discovered that, since 1994 (when former President Clinton submitted to the US Senate LOST amendments that allegedly addressed former President Reagan’s objections), CHM has evolved into a prominent instrument of ‘soft’ socialism within the European-dominated UN environment and sustainable development (UNEP/SD) programs. CHM now encompasses the legal obligation erges omnes – ‘of all to all’, which serves as the primary UNEP/SD rationale for the global governance of the earth’s biosphere. In the context of the LOST, CHM mandates the establishment of a UN-sanctioned global environmental conservation trust that would protect and preserve, through strict non-science and non-economics-based international and national regulations, all human use and exploitation of the oceans and its living and nonliving organisms.

Consequently, following LOST ratification, US commercial businesses including the US military’s industrial and technology suppliers could no longer undertake design, manufacturing, processing, disposal and delivery activities within the US in reliance upon current US federal laws. This is especially true, now that President Bush has forwarded, once again, for Senate ratification four other related UN environmental treaties that would require yet further amendments to existing US federal chemicals legislation.

More importantly, each of these other UN treaties contain the same non-science and non-economics-based European environmental legal principle embedded within the LOST 45 plus, which this president and his predecessor only barely succeeded in defeating at the World Trade Organization (WTO). That legal nostrum is the ‘standard-of-proof diminishing, burden of proof-reversing’, ‘guilty-until-proven-innocent’, ‘I fear, therefore I shall ban’ ‘hazard (not risk)-based’ Precautionary Principle (PP). Unfortunately, the LOST dispute settlement mechanism, with its emphasis on adjudicating environmental rather than trade issues, is unlikely to yield the same positive results as those the US secured at the WTO.

In fact, US LOST ratification would provide other LOST treaty parties (especially those in Europe) with a greater ability to employ their unscientific PP to gradually undermine US military, economic and technological superiority. Such nations, for example, could more easily preclude the US military’s civilian technology and industrial supply chain from designing, producing and delivering effective technologies, products and processes that maintain US military preparedness. They also could disrupt US military logistics by relying upon environmental hazard rather than risk assessments to restrict the otherwise “innocent passage” of vessels operated by the US military’s many private shipping contractors. This is extremely likely to occur where US cargoes passing through navigational straits and territorial waters of other LOST parties include alleged ‘hazardous waste’ and/or ‘dangerous’ substances such as liquefied natural gas, oil, coal, chemicals, computers, electrical and electronic hardware, and perhaps, even genetically modified foods, feed and seed. And, such LOST parties could also cite the existence of hypothetical environmental hazards to limit, on PP grounds, the innocent passage of US nuclear-powered military vessels.

The lack of truth and public transparency surrounding the LOST are hard to ignore. By ratifying the LOST, the US would unleash Europe’s PP and subject US military and economic sovereignty to eventual UN dominance and control. Therefore, the US Senate must publicly review the LOST’s largely hidden environmental regulatory agenda BEFORE it renders its advice and consent. Only by exposing the LOST’s deep dark caverns to the light of day in public hearings convened by the various congressional committees possessing oversight jurisdiction, as had recently occurred in connection with the illegal immigration bill, would the US be able to avoid such a disastrous outcome. Anything less would shortchange Americans and violate their cherished US constitutional right to due process.

* Ambassador J. William Middendorf II previously served as US ambassador to the Netherlands, the European Union and the Organization of American States and as Secretary of the US Navy.** Lawrence Kogan is president and chief executive officer of the Institute for Trade, Standards and Sustainable Development (ITSSD), a nonpartisan, nonprofit, international legal research and educational organization, and has advised the Bush administration concerning Europe’s use of the precautionary principle to dominate international economic affairs.

About Me

When I was in high school, I decided that I wanted to leave the world better off than it would have been if I had not existed. This started a quest, through 12 years of college and on to today, to try to discover what a "better" world consists of. I have written a book describing that journey that you can find on my website. In this blog, I will keep track of the issues I have confronted since then.